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Friday, June 28, 2013

Hey Congress, why don’t you call John Roberts’ bluff?

By Michelle D. SchwartzDirector of Justice Programs
In a devastating decision he no doubt hopes will be overshadowed by Wednesday’s historic marriage equality decisions, Chief Justice John Roberts on Tuesday tore out the heart of the Voting Rights Act, arguably the most successful civil rights law in our nation’s history.

Chief Justice John Roberts

Roberts’s opinion—for himself and the other four conservatives on the Court—struck down as unconstitutional the formula in Section 4 of the VRA that dictates which jurisdictions must have voting rules changes preapproved under Section 5 of that same law. Section 5 theoretically survives; it just doesn’t actually apply to anyone anymore.

The Chief Justice’s opinion cynically states that the Court isn’t doing any big thing because Congress can act to restore the Voting Rights Act:

We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

But as Professor Richard Hasen so aptly pointed out in The New York Times earlier this week, Roberts knows that won’t happen:

The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

In other words, Roberts is trying to have it both ways: claiming he has left Section 5 of the VRA intact, while knowing he has effectively killed it because Congress won’t act.

So why doesn’t Congress call his bluff? Wouldn’t it be great if Congress went ahead and did what Roberts has said they can and should do? Wouldn’t it be fun to watch Roberts have to keep smiling and pretending this is truly what he wanted all along?

Acting in this way could be particularly therapeutic for those Democratic senators (and they know who they are) looking to atone for voting to confirm John Roberts. It’s too late to keep him off the bench, but you can still show him who’s boss!